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U.S. employers continue to overreact to employee social media activities – and employees and unions continue to allege that they are breaking the law in the process – according to two recent studies released by the National Labor Relations Board (NLRB) and the U.S. Chamber of Commerce. The NLRB report, released on August 18, 2011, reviews a number of recent cases involving social media and is intended to provide guidance to employers, employees and unions on the legal standards governing protected employee speech and social media. The Chamber of Commerce study, released on August 5, 2011, summarizes more than 100 pending NLRB cases involving employee discipline and social media from an employer’s perspective.

As reported in our June 2011 E-Newsletter, the recent NLRB report fulfills the Board’s promise to provide guidance for employers, employees and unions on the legal standards governing protected employee speech and social media. Such guidance is sorely needed, because both the NLRB and Chamber reports show that as social media outlets rapidly expand, employees increasingly vent on their Facebook or Twitter pages, employers continue to overreact, and unions struggle to balance the need to protect employees’ workplace-related expression with traditional standards governing employee discipline.

The August 2011 NLRB report reviews the outcome of Board investigations into employee and union use of social media, and employers’ social media policies, in 14 separate cases that had been submitted to the NLRB’s Division of Advice in Washington, DC. The investigations focused on three “emerging issues” related to social media: (1) the protected nature of employees’ Facebook and Twitter postings; (2) the impact of unions’ Facebook and YouTube postings; and (3) the lawfulness of employers’ social media policies.

The results, perhaps predictably, are all over the map. In some cases, employee comments on Facebook or Twitter constituted “protected and concerted” activity, but in other cases amounted to individual gripes. In many cases, employer social media policies were overbroad, chilling otherwise protected employee activity. And in one case, a union’s YouTube and Facebook posting were deemed to be coercive in nature.

The August 2011 Chamber study confirmed that since 2009, the NLRB has been faced with a steady increase in the number of unfair labor practice charges related to employer abuses of employees who engage in social media activity. According to the report, charges against employers have mainly fallen into two categories: (1) charges filed by employees disciplined due to social media postings; and (2) charges challenging overly broad employer social media policies. There have also been disputes over the employer’s obligation to bargain over social media policies, as well as challenges to unions’ use of social media to communicate with members.

The rules governing the limits on social media use by workers will continue to evolve as more cases arise, and as the NLRB and reviewing courts apply time-tested rules to rapidly changing technology. For unions and their lawyers, this is nothing new. “Technology changes, but the dynamics are the same. Employers want control, and unions and workers want dignity and justice. Yesterday we blogged, today we tweet, tomorrow who knows what we’ll be doing,” said Philadelphia union attorney Richard Poulson. “But I can guarantee that employees will continue to express themselves, and our challenge as unions and as advocates is to apply consistent rules despite those changes.”